J. Nezperce v. Salmonsen

11/22/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 22-0619
OP 22-0619
JOSEPH DENNY NEZPERCE,
NOV 2 2 2022
Bowen Greenwood
(-curt
Petitioner, CI cf
- .-•tote of .'...Aontana
v.
ORDER
JAMES SALMONSEN, Warden,
Montana State Prison,
Respondent.
Appearing as a self-represented Petitioner, Joseph Denny Nezperce asserts that the
Board of Pardons and Parole (Board) should have granted Nezperce parole and that the
Board violated his Due Process rights by its denial. Nezperce contends that his
incarceration is illegal because the Board's denial is "unusual and retaliatory due to the fact
[of the] filed grievances against MSP Policy regarding grooming and canteeen products
``MSP Policy No. 441" because Nezperce contends that Nezperce is a "Transwoman
within a male prison . . . ."1 Nezperce states that the Montana State Prison (MSP) and the
Departrnent of Corrections (DOC) do not have policies for transgender people. Nezperce
concludes that his/her civil rights under the Due Process clauses for the State and Federal
Constitutions as well as Montana's Human Rights Act have been violated. Nezperce
requests that this Court investigate the cause of the parole denial.
This Court does not conduct investigations. We have stated many times that the
Board has broad discretion and authority to reach its decisions. McDerrnott v. McDonald,
2001 MT 89, ¶11 19-20, 305 Mont. 166, 24 P.3d 200. "Under both Montana and federal
precedent, parole is a privilege and not a right." McDerrnott, ¶ 19. We point out that
Nezperce did not include a copy of the Board's decision.
Nezpercce does not provide in the instant Petition what pronouns he/she prefers to use.
We obtained a copy of the Board's case disposition. In April 2022, Nezperce had
an appearance before the Board for a parole hearing. The Board denied Nezperce parole
at that time because Nezperce did not have clear conduct. Pursuant to the Board's
administrative rules, lain offender in a secure facility must have 120 days free of major
disciplinary violations." Admin. R. M. 20.25.305(5) (2012). The Board continued the
parole hearing to October 2022, noting that the hearing was waived at that point. The cause
of Nezperce's denial was based upon the lack of clear conduct.
Turning to the other claims, Nezperce has not demonstrated illegal incarceration.
Section 46-22-101(1), MCA. The claims concerning discrimination, retaliation, and civil
or human rights violations cannot be reached through this remedy of a writ of habeas
corpus. See Gates v. Missoula Cnty. Comm'rs., 235 Mont. 261, 262, 766 P.2d 884, 884-85
(1988) (the writ of habeas corpus is not the remedy for constitutional claims concerning
conditions of confinernent). Nezperce mentioned submitting grievences about the canteen,
but it is not apparent whether Nezperce reported any allegations or complaints of
discrimination, harassment, or retaliation via DOC's Policy for grievances.
See DOC Policy No. 3.3.5 concerning Inmate/Staff Comrnunication Methods and
DOC Policy No. 3.3.3 for Offender Grievance Prograrn. "Grievances should provide
prison officials with fair notice of a problem and thus an opportunity to address the problem
before a lawsuit is filed." Diamond v. Owens, 131 F. Supp. 3d 1346, 1358 (M.D. Ga. 2015)
(citing Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir. 2004)).
Nezperce has other available rernedies before coming to this Court. Nezperce
should utilize the grievance procedure under DOC Policy No. 3.3.3, which would assist
any allegations concerning custody and care under a 42 U.S.C. § 1983 claim. Nezperce
may seek relief by filing a complaint in the Powell County District Court where a record
is developed for this Court to review on appeal.
Nezperce has not demonstrated illegal incarceration. Therefore,
IT IS ORDERED that Nezperce's Petition for Writ of Habeas Corpus is DENIED
and DISMISSED.
2
The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel
of record and to Joseph Denny Nezperce personally.
I', 04
DATED this Z-e----day of November, 2022.
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